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OCDW 02.29.16

(with special thanks to Mark Hoover, OIDS, for contributing regularly)

“I have lived my life, and I have fought my battles, not against the weak and the poor—anybody can do that—but against power, against injustice, against oppression, and I have asked no odds from them, and I never shall.”—-Clarence S. Darrow, Attorney for the Damned 491, 497 (Arthur Weinberg ed. 1957).

OKLAHOMA

Ryan Lee Nixon v. State, No. F-2014-939 (Okl.Cr., February 26, 2016) (unpublished): Possession; Sufficiency: Nixon was convicted by jury in the district court of Washington County (the Hon. Russell Vaclaw, presiding), of Manufacturing CDS and Possession of CDS. In this opinion, the Court affirmed the Manufacturing conviction, but reversed the Possession conviction based upon insufficient evidence that he possessed drugs found in a bedroom.

M.J.B. v. State, No. J-2015-910 (Okl.Cr., February 18, 2016) (unpublished): Juveniles and Y.O.: This is the opinion where the Court affirmed the constitutionality of the Youthful Offender statutes against a challenge by Chief Public Defender for Tulsa County Rob Nigh. Rob had attacked the Oklahoma scheme as creating in unconstitutional irrebuttable presumption classification of adult status by the mere accusation of First Degree Murder.

Oklahoma Association of Broadcasters, Inc., v. City of Norman, et al., No. 113,973 (Okla. Civ. App., Div. II, February 22, 2016) (Not for Official Publication): Open Records Act: This is a civil opinion out of Cleveland County where the media tried to obtain the videotape of O.U. football player Joe Mixon assaulting a woman. Law enforcement allowed the media to view the tape, but not to record it and they were not provide copies of it. The media sued for declaratory, injunctive, and mandamus relief under the Open Records Act. Norman P.D. moved to dismiss, which was granted by the Hon. Thad Balkman. In this neat opinion, the panel reversed and remanded in a nice discussion of the Open Records Act.

TENTH CIRCUIT

No new cases.

UNITED STATES SUPREME COURT

“Only Supreme Court justices and schoolchildren are expected to and do take the entire summer off.” –Chief Justice John Roberts (statement made while he served as a lawyer in the Reagan Administration).

No new cases.

Enid attorney Stephen Jones has written a letter to the President in the wake of the death of Justice Antonin Scalia, urging the President to nominate Judge Merrick Garland, currently serving on the Court of Appeals for the D.C. Circuit.

OTHER CASES OF NOTE

United States v. Feras Rahman, No. 13-1586 (7th Cir., November 9, 2015): Search and Seizure (Consent); Sufficiency (False Statements): In this case arising out of an arson fire, and Rahman making false statements to investigators, the panel reversed because a search exceeded the scope of consent given by Rahman (investigators asked for consent to look for the origin and cause of the fire; but exceeded the scope by looking for secondary and circumstantial evidence of arson). Also, the evidence was insufficient to support his conviction for false statements to investigators.

United States v. Kerry Newman, No. 15-3009 (D.C. Cir., November 17, 2015): IAC; Coram Nobis: Newman contested his conviction for federal wire fraud via guilty plea because his lawyer gave incorrect advice regarding the deportation consequences of the plea. This was good for Newman in light of Padilla v. Kentucky, 559 U.S. 356 (2010), which held that IAC will lie when a lawyer fails to advise a client about deportation consequences of a plea; but then the bad news came in the form of Chaidez v. United States, 133 S.Ct. 1103 (2013), which held that Padilla is a new rule of criminal procedure, and therefore not retroactive to petitioners like Newman. Newman persisted with his IAC claim in spite of Chaidez on two bases: 1) counsel was ineffective for failing to negotiate an effective plea bargain by neglecting to research and consider the immigration consequences on pleading guilty; and 2) the fact that counsel provided him erroneous legal advice on the immigration consequences of the plea (Newman argued that correct legal advice was a requirement even before Padilla). The panel rejected the first basis as foreclosed by Padilla and Chaidez, but found merit in the second basis, and remanded for a determination of whether Newman could show prejudice. NOTE: Since Newman was no longer in custody as a result of the conviction, he had to file a petition for a writ of error coram nobis, which was the proper way to proceed in this case.

United States v. Arnaldo Cabrera, No. 14-5572 (6th Cir., December 4, 2015): Federal Sentencing Guidelines (Reasonableness): In this felon in possession of a firearm case, Cabrera defended on the basis that law enforcement doctored an audiotape recording of a handgun transaction with a CI. Cabrera had no evidence to support this theory, and he did not testify in support of it. The district court punished him for it at sentencing by imposing a top-of-the-Guidelines sentence for the “fantastic” claim of tape alteration, and because Cabrera did not testify in support of that claim. In this opinion, the panel found that this was error because Cabrera was entitled to contest to the Government’s case and not be punished for doing so.

Steven Board v. Margaret Bradshaw, Warden, No. 14-3199 (6th Cir., November 10, 2015): Habeas Corpus (SOL & Equitable Tolling): The district court held that Board’s habeas petition was untimely under the one-year statute of limitations. Board argued that it was not because he had filed, unsuccessfully, a motion for leave to file a delayed appeal under Ohio appellate rules which tolled the statute of limitations. The panel agreed with Board and reversed.

VICTORIES

JULIE LINNEN & WILLIAM WIDELL, Assistant Federal Public Defenders N.D. Okla., presented a motion to suppress in both a traffic stop and a subsequent home search to the Hon. John E. Dowdell who, in THIS EXTRAORDINARY ORDER, granted both motions based upon the fact that police officers from the Broken Arrow Police Department and the Sapulpa Police Department were caught lying at the suppression hearing—and the U.S. Attorneys had to spend day two of the suppression hearing correcting the lies told by their police officer witnesses on day one(!!) Terrific work, Julie and William!

ATTORNEYS FEES: This is not a criminal law victory per se, but attorneys Josh Lee, Vinita, and Stephen Fabian, OKC, have been steadily kicking the City of Claremore’s ass in a civil lawsuit over public records and access to police video. In the latest round of litigation, the Court of Civil Appeals reversed the trial court over attorneys fees. This is tenacious advocacy on an important issue. Nice work, Josh and Stephen!

HEARSAY

TEXAS EXECUTION: Last week, the State of Texas executed Gustavo Garcia, 43, for the murder of a liquor store clerk more than 25 years ago.

CIVIL FORFEITURE: John Oliver’s show on HBO, Last Week Tonight, is superb commentary on topics of the day. The link goes to his piece on civil forfeitures and what bullshit they are to citizens who find themselves on the receiving end of a law enforcement shakedown. The parody piece at the end is hilarious. Also, THIS PIECE on state legislatures is very good, too, as well as THIS ONE on bail.

COURT CLERK: Janelle Sharp has announced her candidacy for Court Clerk of Garfield County.

NO MORE WEDDINGS: Tulsa County judges will no longer perform courthouse wedding ceremonies because of high caseloads.

JUDGE NEWBY HONORED: Garfield County District Judge Tom Newby was honored by the Boy Scouts with the North Star Award for his contributions to scouting.

RIP DASH: K-9 Officer Dash of the Broken Arrow Police Department has passed away after a battle with a brain tumor.

BREAD CREW: The Rogers County Jail has created an inmate bread crew to make their own bread, saving money and creating better food.

POLICE WORK: A division of the Tulsa Police Department is instituting an old school approach to crime—community policing.

BAR vs. CALVEY: Rep. Kevin Calvey is spearheading an effort to change the way appellate judges are selected in Oklahoma. He wants elections, while the Bar Association opposes it. HERE is another good John Oliver piece on judicial elections.

POLICE DRONE: The City of Miami has purchases a drone for law enforcement purposes, but the Chief has assured the citizens that they need not worry about invasions of privacy.

A woman was arrested in Chicago last week for trying to stowaway on an airplane at O’Hare—apparently she has a long history of trying to board planes without a ticket, and has succeeded in the past; an 18-year-old led Tulsa Police on a slow speed chase, described as “slow, but effective”; two men were arrested in Tulsa for stealing hundreds of pounds of copper wire from the City; thieves in Oklahoma City stole an ATM from a Conoco station in a big way by crashing through the wall (see the picture);

LEGAL CALENDAR

FRIDAY, MARCH 25, 2016: The 11th Annual Oklahoma Forensics Academy will take place at the Moore-Norman Technology Conference Center, 13301 S. Pennsylvania, Oklahoma City, OK, and will be good for 7 CLE credits (includes 30 minutes of ethics).

SUBSCRIPTIONS AND SUBMISSIONS: To subscribe to the Oklahoma Criminal Defense Weekly just send an e-mail to James L. Hankins at jameshankins@ocdw.com and include the e- mail address to which you want the issues to be delivered. I am sending out the issues for free now to whoever wants to receive them. Submissions of articles, war stories, letters, victory stories, comments or questions can be sent to Mr. Hankins via e-mail or you can contact him by phone at 405.753.4150, by fax at 405.445.4956, or by regular mail at James L. Hankins, TIMBERBROOKE BUSINESS CENTER, 929 N.W. 164th St., Edmond, OK 73013.

ABOUT THE OCDW: The Oklahoma Criminal Defense Weekly is compiled, maintained, edited and distributed weekly by attorney James L. Hankins. Archived issues can be obtained by contacting Mr. Hankins directly, although some of them are on the web site at www.ocdw.com. OCDW accepts no money from sponsors. Mr. Hankins is solely responsible for its content. The OCDW web site is maintained by Spark Line.

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